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The Honolulu Advertiser
Posted on: Sunday, May 21, 2006

COMMENTARY
English-only policies are downright illegal

By David M. Forman

In the context of the ongoing national debate on immigration, an April 26 Annie's Mailbox column titled "English-speaking nurse finds herself excluded by language barrier" highlights important issues of direct relevance to the people of Hawai'i.

The writer, who signed the letter "English Spoken Here," works with "an increasing number of Filipino employees, especially women" who "make me feel ostracized, like a stranger in my own country" because they "constantly talk to one another in their native language."

According to "English Spoken Here," Filipino "is not a pretty language" indeed, the complaining nurse finds it "disturbing" and "unpleasant" even though he or she admittedly does not have any reason to care about what the other nurses are actually saying to each other.

Analogous sentiments are being expressed almost daily during national debates on the Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005.

Like "English Spoken Here," I suspect that these folks would object to being labeled as racists. Nevertheless, their statements reflect a level of (at least) unconscious discrimination.

"Annie" deserves praise for confronting the bigotry revealed by "English Spoken Here" and for elevating the discussion by suggesting that the complaining nurse try to develop friendships with the other nurses by learning some Filipino words.

However, the accompanying call to enforce the company's English-only policy unjustly condones discrimination based on ancestry and/or national origin (including language).

Not only are blanket English-only policies illegal under the laws of Annie's home state (California), they are also prohibited under our own state law.

At the end of 2005, the Hawai'i Civil Rights Commission (HCRC) settled an ancestry/national origin discrimination claim filed by a Filipina nurse whose employer repeatedly warned and orally reprimanded her for speaking Ilocano in its facility.

According to applicable regulations, "Any rule requiring employees to speak English or other specific language at all times in the workplace, including work breaks, shall be considered a violation of chapter 378, H.R.S."

An exception exists for employers who can demonstrate that their rules requiring employees to speak only English at certain times are justified by a legitimate business necessity.

However, HCRC precedent suggests that such rules are appropriate only where there are "no available, acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser discriminatory impact."

Here in Hawai'i, we have a large number of Filipino employees and nurses who fulfill a valuable role in the healthcare and long-term-care industries.

Like law enforcement officers and other professionals, nurses who speak languages other than English often provide important (even life-saving) interpretation and translation services, frequently without financial compensation.

In California, many skilled nursing/intermediate-care facilities adopted English-only rules after being cited for speaking languages other than English while providing care to their patients or residents in violation of federal regulations governing patient dignity. Some facilities overreacted by requiring their employees to speak English whenever within earshot of English-speaking residents.

However, this kind of English-only rule violates federal and state civil rights laws. In the early 1990s, California's Department of Health Services (DHS) issued policies explaining that "all employees have the right to communicate with each other in their primary language when not engaged in direct communication with, or providing care to a resident."

Moreover, "there are no regulations which prohibit staff from conversing with each other in their native tongue when they are not communicating, directly, with residents."

The legal consequences of enforcing English-only rules can be significant.

In the late 1990s, discrimination claims by employees of the Fifth Avenue Health Care Center in San Rafael, Calif., resulted in a $52,500 settlement.

Nurses at the center had been harassed and humiliated by warnings or reprimands admonishing them for speaking in languages other than English, even when no residents were in the area.

In December 1999, subsequent to the Fifth Avenue settlement, DHS issued an all-facilities letter restating its existing policies and affirming "the rights of skilled nursing and intermediate care facility residents and employees, including the right to live in an environment which is free of discrimination."

According to DHS, "Care must be provided in a manner that affords dignity and respect for each resident. When providing care, employees should not engage in a conversation of a social nature with each other that does not relate to the care of the resident. However, employees do have the right to communicate with each other in a language of their choice when not engaged in direct communication with, or while providing care or services to, a resident."

These policies represent "available, acceptable alternative(s)" that accomplish the purported motivation for English-only policies in nursing homes and care facilities "with a lesser discriminatory impact."

Of course, discriminatory English-only policies are not the sole province of nursing homes and care facilities.

For example, a San Antonio, Texas, university paid $2.44 million in 2001 to 18 complainants subjected to verbal and physical abuse by a nun enforcing a full-time, English-only policy. The Colorado Central Station Casino also paid $1.5 million in a case involving employees who felt compelled to hide in closets to discuss work assignments so they would not be punished for speaking their native language. A suburban Chicago manufacturing plant paid $192,500 to employees subjected to an English-only policy. A Chicago company paid $55,000 to settle claims by employees forced to speak English during working hours.

As with nursing homes and other care facilities, employers relying on English-only policies purportedly justified by business necessity may do so only if there are no less discriminatory alternatives available to meet their business needs.

The reality is that more than English is spoken here. Hawai'i has the fourth largest foreign-born population in the nation. According to the 2000 Census, more than 56,000 of our residents speak English "not at all" or "not well." Meanwhile, adult-education and other English-as-a-second-language classes are underfunded and over-enrolled. Thus, the issue is not whether immigrants or other residents should learn or speak English.

To paraphrase "Dear Annie's" advice concerning the application of English-only policies, the real issue is that nondiscrimination laws "should be enforced, and your complaints should be directed" to the HCRC.

Ancestry/national origin (including language) discrimination is against the law.

David M. Forman is an enforcement attorney with the Hawai'i Civil Rights Commission. He wrote this commentary for The Advertiser.